But in the case of interdiction of commerce and return of the ship, this ordinance prescribes a different rule, which I have before noticed; "If there happen a prohibition of commerce with the country to which the ship is sailing, and the master be obliged to return with his cargo, the outward freight alone shall be due to the master, although the ship be freighted out and home (1).

With regard to capture and ransom, the author of "The Guidon," speaking of the case where the goods only are taken by pirates and the ship discharged, and the goods are afterwards ransomed, says, that "if the master will not contribute to the ransom, he shall lose his whole freight; but if he contributes, he shall be paid freight as far as the place of the capture, as well in the case of affreightment by charter-party as otherwise; and if he furnishes another ship, to relade the goods, he shall be paid his whole freight " (m). Upon this subject the French ordinance provides, "that if the ship and goods are ransomed, the master shall be paid his freight as far as the place of capture-even his whole freight, if he conveys the goods to the place of destination, he contributing to the ransom" (n). Although ransom is now prohibited by the law of England, yet this doctrine. may apply to the case of capture and recapture; and, accordingly, in an action brought by a seaman for his wages, in the case of a ship taken and retaken, and which reached the port of destination (0), Lord Eldon, before whom the cause was tried, held that the wages were payable, because, said his lordship, "the ship on her arrival was entitled to freight" (p).

Upon this subject of the apportionment of freight, Malyne says, "If the ship in her voyage become unable, without the master's fault, or the master or ship be arrested by some authority of magistrates in her way, the master may either mend his ship or freight another; but in case the merchant agree not thereunto, then the master shall at least recover his freight, so far as he hath deserved it (g). The same author also mentions the following case :—A merchant took a ship to freight, and put in the master and mariners, and victualled the ship at his own expense, and by a charter-party engaged to pay the owner for the use of ship and furniture 201. every month, at her return into the river Thames. The merchant laded the ship for the Streights, and to go from port to port and to several places with merchandise; and after about two years, the ship, having taken in a cargo at Barbary, was, on her return to London, cast away by a tempest near Dover, and the goods were saved. The merchant refused to pay the freight, because the ship did not arrive in the river Thames, according to the words of the charter-party. "Herein," says the author, "the owner was much wronged, for the money is due monthly, and the place was named only to signify the time when

(1) Same title, art. 15, and Code de Com. art. 299.

(m) Guidon, ch. 6, art. 7.

(n) Liv. 3, tit. 3, Fret, art. 19, and Code de Com. art. 303.

(0) Bergstrom v. Mills, Westminster Sit. in Mich. Term, 40 Geo. 3; 3 Esp. N. P. C. 36.

(p) See ante, sect. 1 of this chapter.
(9) Malyne, p. 98.

the money due was to be paid; "but he does not inform us whether the question was ever brought before a court of justice, or whether or no the merchant finally paid any part of the freight (r). His opinion, however, is confirmed by the following case :

The ship Lord Duncan was let to freight for twelve calendar months certain, from the 24th of September 1806, and from thence for such longer period, if any, as the merchants should detain her. The merchants covenanted to pay for the hire and service of the ship for twelve months, and such longer time as they should keep her, the freight and rate following-viz., twenty-four shillings per calendar month per ton, commencing from the before-mentioned day, and ending when the ship should be returned to the river THAMES, and thereby the freighters be declared to be discharged; it being understood that they should not be at liberty to discharge the ship at any other place but within the port of London; the freight to be paid in the proportions and at the periods following-viz., two months at the execution of the charter-party; two months more at the end of six calendar months from the said 24th of September; two months more at the end of ten calendar months; two months more at the end of fourteen calendar months, should the ship be so long employed; and, in like manner, two months more at the end of every succeeding two calendar months, until the ship should be discharged, and immediately upon such discharge the balance to be paid. The ship was taken into the employ of the merchants, and between ten and twelve months from the said 24th of September was destroyed at Saint Domingo by an accidental fire. The merchants contended that the right to the portions of freight depended upon the safety of the ship at the particular times at which they were made payable, so that the loss of the ship at the time before-mentioned confined the claim of the owner to six months, for which period he had been paid. But the Court of King's Bench decided that the times fixed for the actual payment were to be considered only as postponing for the merchants' convenience the actual payment of sums then due to a future period, not as creating a contingency whether they should ever be paid at all; and that each month's freight was earned and became completely due at the end of each month, the actual payment only being postponed (s). The distinctions between this case and that of Smith v. Wilson (which will be mentioned hereafter) (t), both as to the terms of the contract and the subsequent events, will be obvious to the reader.

This rule of the maritime law, which directs the payment of freight according to the portion of the voyage performed-pro ratá itineris peracti- is open to much observation and to many difficulties. I have been able to collect upon it only the following decisions of English courts.

(r) Malyne, p. 101.

(8) Havelock v. Geddes and others, 10 East, 555. See ante, ch. 1 of this part, sect.

4, p. 208. See also Crozier v. Smith, 1 Scott, N. R. 338.

(t) See the last section of this chapter.

Lutwidge, the owner of a ship called the Wharton, let his ship by a charter-party to Archibald Grey and others, merchants at Glasgow, for a voyage from Glasgow to Maryland or Virginia, and back, and was to receive freight from them for the homeward cargo only, at the rate of 87. 12s. per ton of tobacco; one-half to be paid immediately after the ship's discharge at Glasgow, and the other half within six months after such discharge. The ship sailed to Virginia, delivered her outward cargo, and took on board from the merchants' factor a cargo of tobacco, part of which was their property; the residue belonged to other persons. Grey and Co. insured their part of the cargo with persons living at Bristol; the other part was not insured. On the return homeward the ship was cast away at Youghall, in Ireland, and part of the cargo was saved by the assistance of the officers of the customs, and deposited in the Customhouse there. Lutwidge, as soon as he knew of the misfortune, informed Grey and Co. of it, and told them he should provide another ship to transport the tobacco which was saved. Grey and Co. abandoned their part of the cargo to their insurers, and endorsed over the bills of lading to them. Lutwidge provided another ship at Youghall, but the insurers took the part of the cargo abandoned to them, and conveyed it to Bristol. The agent of the proprietors of the other part of the cargo was willing to have laded it on board the ship thus provided, if the master thereof would sign bills of lading to deliver it at Glasgow, in conformity with the original charter-party; but the master refused to give such bills of lading, or to oblige himself to deliver it at Glasgow, offering only to give receipts obliging himself to deliver it in Great Britain; and the agent refused to deliver it to him upon those terms, and sent it by another vessel to Glasgow, where several hogsheads were found so much damaged that they were not entered at the Custom-house, but burned at the King's scales there. Lutwidge brought an action against Grey and others for his freight, according to the charter-party, in the Court of Admiralty in Scotland. On their part it was insisted, that the contract of affreightment was dissolved by the shipwreck, and that there remained only a demand in equity for freight; that the demand could not be made against them, who had not taken the goods into their possession, but must be made for part against the insurers at Bristol, and for the residue against the proprietors of that residue; that this demand could only be in proportion to the value of the goods saved, after deduction of salvage and charges; and that, at all events, it could only be for the proportion of the voyage to Youghall, because the master of the ship refused to sign bills of lading and engage to deliver the tobacco at Glasgow. The judge of the Court of Admiralty decreed that the full freight was due from Grey and Co. for the part of the cargo saved, but none for the part lost; and that the full freight was due, although the goods were not carried to Glasgow, because Lutwidge had another ship ready to transport them thither, and there was no occasion for any new bills of lading while the former bills of lading subsisted. From this judgment Grey and Co. appealed to the Lords of Session in Scotland, who by their inter

locutor decreed, "That the contract of affreightment was dissolved by the total loss of the ship, albeit some of the shipwrecked goods were saved out of the shipwreck; and found that the freighters' endorsing the bills of lading to the insurers did not subject the freighters to any freight for the goods recovered by the insurers, but found the merchants liable to the freight pro rata itineris, of such of the goods as were brought to Glasgow, notwithstanding some of the tobacco was found damnified and burned there." This decree or interlocutor was, upon the petition of Lutwidge, reviewed by the Lords of Session, but affirmed by them. Hereupon Lutwidge appealed to the House of Lords, which reversed the decree or interlocutor of the Lords of Session complained of by the appellant, and the affirmance of that interlocutor; and declared "that the respondents, Grey and others, were liable for the full freight of such of the goods as were given up to the insurers, and for the freight pro ratá itineris of such of the goods as were brought to Glasgow, notwithstanding some of the tobacco was found damnified and burned there" (a).

The next case on this subject was decided in the Court of King's Bench, and occurred soon after Lord Mansfield presided in that court. The cause had been tried before him in the country, and he appears to have paid particular attention to the decision. "I was desirous,' he said, "to have the point reserved for the opinion of the court, in order to settle it more deliberately, solemnly, and notoriously; as it is of so extensive a nature, and especially as the maritime law is not the law of a particular country, but the general law of nations: non erit alia lex Romæ, alia Athenis: alia nunc, alia posthac; sed et apud omnes gentes et omni tempore una eademque lex obtinebit."

The facts of the case were these:-Lyde shipped a cargo of 1,501 quintals of fish at Newfoundland, on board the ship Sarah, belonging to Luke and others, to be carried to Lisbon: the freight was to be at the rate of two shillings per quintal. The price of the cargo at Newfoundland was ten shillings and sixpence per quintal. Luke and others also had on board a quantity of fish, their own property. The ship set sail on the 27th of November, 1756, and having proceeded seventeen days on her voyage, was taken, on the 14th of December, by a French ship, within four days' sail of Lisbon, but retaken on the 17th of December by an English privateer, and brought, on the 29th, into the port of Biddeford, in Devonshire. The French ship took out the master and all the crew, except one man and a boy. Lyde took his goods of the recaptors and paid five shillings per quintal salvage, the value of the fish being then estimated at ten shillings per quintal. The fish could not be sold at all at Biddeford, nor at any other port in England, for more than ten shillings per quintal, clear of charges and expense; and it was supposed by every person that the fish would

(a) Lutwidge and another v. Grey and others, determined in the House of Lords, February 23, 1733. The account here given is taken from the printed cases delivered by both parties to the House of Lords. The

judgment of the House of Lords will be found in the printed journals of the year, p. 356. The case is cited in the case of Luke v. Lyde, both at the bar, and by Lord Mansfield, who was one of the counsel for the appellants.

be disposed of to the greatest advantage at Bilboa, in Spain, to which place Lyde sent it without delay; but it fetched there only five shillings and sixpence per quintal, clear of freight and expenses, being little more than one-third of the prime cost and salvage. The freight from Biddeford to Lisbon was higher than from Newfoundland to Lisbon. The owners, Luke and others, abandoned the ship to their insurers, and never offered to convey the goods to Lisbon, nor were ever required to do so by Lyde, the merchant. In an action brought by the owners, Luke and others, for freight, the court decided that they should recover freight as for half the quantity of the cargo shipped, considering the other half to be absolutely lost by the expense of salvage, and in the proportion of seventeen days, during which the ship had proceeded on the voyage, to twenty-one days, within which the voyage would have been completed if the capture had not happened-that is, 607. 14s., being of 75l., the half of 1501. And Lord Mansfield said, "If a freighted ship becomes accidentally disabled on its voyage, without the fault of the master, the master has his option of two things-either to refit it (if that can be done within convenient time), or to hire another ship to carry the goods to the port of delivery. If the merchant disagree to this, and will not let him do so, the master will be entitled to the whole freight of the full voyage; and so it was determined in the House of Lords, in the case of Lutwidge and Howe v. Grey et al. As to the value of the goods, it is nothing to the master of the ship whether the goods are spoiled or not, provided the freighter takes them; it is enough if the master has carried them, for by doing so he has earned his freight, and the merchant shall be obliged to take all that are saved, or none; he shall not take some and abandon the rest, and so pick and choose what he likes, taking that which is not damaged, and leaving that which is spoiled or damaged. If he abandon all, he is excused freight; and he may abandon all, though they are not all lost. Now, here is a capture without any fault of the master, and then a recapture; the merchant does not abandon, but takes the goods, and does not require the master to carry them to Lisbon, the port of delivery. Indeed, the master could not carry them in the same ship, for it was disabled, and was itself abandoned to the insurers of it; and he could not desire to find another, because the freight was higher from Biddeford to Lisbon than from Newfoundland to Lisbon. There can be no doubt but that some freight is due; for the goods were not abandoned by the freighter, but received by him of the recaptor. The question will be, what freight? The answer is, a rateable freight-i.e., pro ratá itineris.

"If the master has his election to provide another ship to carry the goods to the port of delivery, and the merchant does not even desire him to do so, the master is still entitled to a proportion, pro ratá, of the former part of the voyage. I take the proportion of the salvage here to be half of the whole cargo upon the state of the case as here agreed upon. And it is reasonable that the half here paid to the recaptor should be considered as lost; for the recaptor was not obliged to agree to a valuation, but he might have had the goods